Johnston on Communication and Competence in Self-Representation

E. Lea Johnston (University of Florida - Levin College of Law) has posted Communication and Competence for Self-Representation (Fordham Law Review, Vol. 84, 2016 Forthcoming) on SSRN. Here is the abstract:

In Indiana v. Edwards, the U.S. Supreme Court held that states may impose a higher competency standard for self-representation than to stand trial in criminal cases. While the Court articulated a number of interests relevant to representational competence, it left to states the difficult task of formulating an actual competence standard. This Article offers the first examination and assessment of the constitutionality of state standards post-Edwards. It reveals that seven states have endorsed a representational competence standard with a communication component. Additionally, twenty states have embraced vague, capacious standards that could consider communication skills. States have applied these standards to deny self-representation on grounds of stuttering, strong foreign accent, and low level of education, even when defendants have intact decision-making abilities. 

However, the extent to which the Sixth Amendment permits denial of self-representation on the basis of inadequate communication skills is dubious.

Edwards indicates the relevance of expressive abilities to representational competence, yet Faretta v. California warns that trial courts should not expect strong advocacy skills from pro se litigants. Moreover, McKaskle v. Wiggins construes self-representation as a bundle of distinct rights of control and performance, suggesting that a court should permit a decisionally competent defendant to control his case even if he requires assistance to perform it. This Article reconciles these three cases and proposes a normative theory to balance the competing concerns of autonomy, fairness, and accuracy that are implicated when defendants proceed pro se. It identifies four categories of communication impairment of varying constitutional significance and subjects them to this normative theory to discern the extent to which they should constitute cognizable grounds for representational incompetence. The conclusions reveal that existing state competency standards are constitutionally suspect. The Article suggests substantive revisions to state standards and offers a model, two-pronged competence standard for self-representation that would withstand constitutional scrutiny and ensure that a defendant has the necessary capacities both to control and to conduct his defense.